Tapecrown Ltd v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Hughes,Lord Justice Wilson |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1744 |
| Docket Number | Case No: C1/2006/0982 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2006 |
[2006] EWCA Civ 1744
Lord Justice Carnwath
Lord Justice Wilson and
Lord Justice Hughes
Case No: C1/2006/0982
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mr Justice Burton
CO/4652/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Fookes (instructed by Jones Day, Solicitors) for the Respondent
Lisa Busch (instructed by Treasury Solicitor) for the Appellant
Background
1. This appeal concerns an enforcement notice under the Town and Country Planning Act 1990 ("the Act") , issued by the Vale of White Horse District Council in respect of a building on land near Faringdon in Oxfordshire.
2. The building was erected by Tapecrown Ltd ("the company") , on their agricultural holding, which extends to some 11.6 ha. They claimed that it was permitted development under the Town and Country Planning (General Permitted Development) Order 1995 Schedule 2 Part 6 Class A. That permits certain forms of development which are "reasonably necessary for the purposes of agriculture" within an agricultural unit of at least 5 hectares. Under paragraph A.1, development is not permitted if:
"(c) it would involve the provision of a building, structure or works not
designed for agricultural purposes;
(d) the ground area which would be covered by –
i) …
ii) any building erected or extended or altered by virtue of Class A, would exceed 465 square metres…"
The ground area is calculated so as to include both the area covered by the proposed development, and the ground area of any works within the same unit "which are being provided or have been provided within the preceding two years and which would be within 90 metres of the proposed development" (D.2).
3. Before beginning such work, the developer is required to apply to the authority for a determination as to whether their prior approval will be required to the siting, design, external appearance or various other matters. If no notice of determination is received from them within 28 days, the developer may begin work (A.2(2) (iii) (cc)) , provided he does so within five years of his notice to the authority (A.2(2) (vi) (bb)).
4. Also relevant under the GPDO is Part 4 Class A, which grants permission for temporary works required in connection with development operations, but only for the duration of the operations.
5. In this case, an application was duly made by the company for a determination under Part 6 Class A, but the authority's notice requiring further details was sent to the wrong address. The company started work, and the building was largely complete by the time the enforcement notice was served. In a letter dated 17 th November 2003 (during the course of the works) , the authority's enforcement officer confirmed that the site had been visited and that the building was within the dimensions allowed by Class A. However, he questioned whether it was reasonably needed for agriculture within the unit or designed for agricultural purposes, as required by Class A. Following further exchanges on those and other issues, the enforcement notice was served on 11 th October 2004.
6. The building is a rectangular steel framed building, clad to a height of 2 metres in concrete blocks, and above in timber boarding. The roof is corrugated metal cladding. The floor area of the building is 460 square metres. Adjacent to it is a substantial area of hardstanding "only a little less in total area than the building".
7. The enforcement notice alleged the erection of a building and construction of hardstanding without permission. It required the removal of the building and hardstanding, the removal of all building materials and rubble, and the restoration of the site to its original condition. The company appealed to the Secretary of State. The appeal was dealt with by written representations. The planning inspector upheld the notice in a decision dated 15 th June 2005. He declined to grant retrospective permission, or to vary the terms of the notice, other than to extend the time for compliance.
8. Burton J allowed an appeal and quashed the decision. The Secretary of State appeals to this court with permission granted by Pill LJ.
The Inspector's decision
9. The company's appeal was made under section 174 (2) of the Act, relying on grounds (c) (no breach of planning control) , (f) (steps required excessive) , and (g) (period for compliance too short) . The appeal automatically triggered a deemed application for retrospective planning permission in respect of the matters alleged in the notice to be in breach of planning control (s 177(5)).
10. In his decision the inspector dealt in turn with the ground (c) appeal, then the deemed planning application, and then grounds (f) and (g).
11. Ground (c) He noted that the authority relied on two factors as taking the development outside the GPDO:
i) The total development including the hardstanding exceeded the permitted limit of 465m;
ii) The building was not "designed for agricultural purposes".
The inspector agreed with the authority on both points. I note that the authority had also taken issue with the contention that the building was "reasonably needed for agricultural purposes" within the unit under Class A; but the inspector made no reference to that issue and made no finding on it. Although there is no live issue before us as to the inspector's reasoning on ground (c) , it provides necessary background to his treatment of the other grounds.
12. On the first point (the hardstanding) , the main issue was whether the hard-standing was, as the company claimed, covered by the Part 4 permission for temporary building works. The inspector rejected that argument:
"3. The appellant contends, however, that the hard-standing is temporary and was to serve only as a platform for storage and building operations. It has not been removed because building works were not completed following service of the Notice. I accept that some form of hard-standing may be required during building operations. However, the hardcore of which it is comprised is similar in nature and appearance to that laid on the ground within the building. It is also much more extensive than would be required for construction, especially since the area within the building was surfaced and could have accommodated some plant and materials. Furthermore, the Council contend that the hard standing was laid after the major part of the construction works had taken place…"
The inspector also rejected the alternative that the hard-standing was to be moved into the building to complete the floor in due course, and therefore covered by the Part 6 permission:
"… the floor in its current form seems adequate for the purpose to which the building is being put and no indication was given or has now been given about the floor construction proposed.
The building structure appears to be complete with the exception of some further works required at the north-western end and according to the Appellant, the floor. These works would not require extensive hard-standing. In addition, the Appellant refers to the building as being substantially complete and it is, in any event, now in use for the storage of hay…."
He concluded that the hard-standing formed part of the development, which accordingly exceeded the prescribed area limit of 465 m2 set out in the GPDO.
13. Mr Fookes accepts that on both points the inspector disbelieved the company's case, and that he cannot now challenge that conclusion.
14. On the second issue (the design of the building) , the inspector described the building as having attributes which he found "somewhat surprising in a barn":
"6… In addition to the gable door there are three further large door apertures along the longer north- east elevation. These are currently blocked up but have, nevertheless, been created. The Appellant contends these have been formed to make the building adaptable to possible future needs, but is not specific as to what these may be. In any event, steel portal framed buildings of this kind lend themselves to later adaptation due to the clear spans and non-loadbearing walls.
7. Also along the north- east elevation there are six windows, one either side of each door aperture. Although boarded up at present, these apertures contain window frames which are glazed. There are similar windows along the south west elevation and two in the south east elevation. Given that there are twelve translucent panels in the roof which currently provide light levels which are more than adequate for the storage use taking place, I consider the addition of windows in this arrangement to be unusual and unnecessary unless internal sub-division is contemplated".
15. In paragraph 8 he said that, in spite of the "slightly rustic effect imparted to the building by the use of vertical timber cladding", it did not have the appearance of a typical modern barn. Rather it possessed "many of the attributes" of a building for Class B1 or B2 business use. The differences from a typical barn were not minimal, as claimed by the company:
"In their blocked up state [the windows] currently have an impact upon the overall appearance of the building and, were all the openings to be revealed, this effect would be even greater. Since the openings exist they could probably be opened up without reference to the Council."
He concluded that the building exceeded the size limit for Class A and "constitutes a building not designed for agricultural purposes." Again Mr Fookes accepts that this was a finding of fact which he cannot now challenge.
16. Deemed application The...
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